What’s On Their Minds: What Triggers Waiver of Doctor/Patient Privilege in Custody and Spousal Support Dispute? Belinda J. Torres Friedenberg v. Keith A. Friedenberg, et al.

By Marianna Bettman on March 3, 2020

Update: On June 18,2020 the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“Why isn’t an in-camera inspection a safeguard enough?”

Justice Stewart, to counsel for Belinda Torres Friendenberg

“Did the trial court ever find that these records related ‘causally or historically’ to physical or mental injuries that are relevant to issues in the case?”

Justice DeWine, to counsel for Keith Friendenberg

On February 11, 2020, the Supreme Court of Ohio heard oral argument in Belinda J. Torres Friedenberg v. Keith A. Friedenberg et al., 2019-0416. At issue in this case is whether a party’s request for custody and spousal support in the context of divorce proceedings constitutes a waiver of the physician-patient privilege as to relevant medical and mental health records.

Case Background

Belinda J. Torres Friedenberg (“Belinda” or “Wife”) and Keith A. Friedenberg (“Keith” or “Husband”) were married in June 1991 and had four children during their marriage. On March 7, 2016, Belinda filed for divorce, custody of the parties’ minor children, and spousal support. Keith issued numerous subpoenas to Belinda’s doctors and mental health providers, seeking medical records and documents relating to their treatment of Belinda. Belinda filed a motion to quash these subpoenas and a motion for a protective order, claiming that her medical records were protected by the physician-patient privilege. Keith sought to compel the records, arguing that Belinda’s claims for custody and spousal support constituted exceptions to the physician-patient privilege. The magistrate denied Belinda’s motions and ordered that the disputed records be presented to the court. The Domestic Relations Court upheld the magistrate’s recommendation over Belinda’s objection.

On May 10, 2017, Keith filed a motion to compel discovery, claiming that Dr. Anna Janicki of the Cleveland Psychoanalytic Center had not responded to the prior subpoena. The magistrate concluded that Dr. Janicki’s records were relevant to the proceedings and ordered that Keith draft a protective order limiting the dissemination of Belinda’s records to counsel, the parties, and experts in the case. On November 1, 2017, the trial judge held that Belinda had waived the physician-patient privilege because she had placed her physical and mental condition at issue by requesting custody and spousal support. The court granted Keith’s motion to adopt the protective order and ordered that Dr. Janicki’s records be released to counsel.

Belinda appealed, arguing that the trial court erred as a matter of law and abused its discretion in ordering the release of her personal and confidential medical records.

The Appeal

In a split decision, Eleventh District Court of Appeals affirmed the trial court’s judgment. The majority found that the trial court did not err in ordering the release of Belinda’s medical records because Belinda waived the physician-patient privilege by seeking custody and spousal support.

The dissenting judge would find that the trial court abused its discretion in ordering the release of Belinda’s medical records because Belinda’s medical records were not relevant to Belinda’s ability to parent the parties’ children or to Belinda’s request for spousal support.

Belinda’s Propositions of Law Accepted for Review*

Proposition of Law 1

A party’s request for allocation of parental rights and responsibilities does not constitute a complete evisceration of the physician-patient privilege under R.C. 3217.02(B) [sic.] (Belinda appears to be referring to R.C. 2317.02(B)).

Proposition of Law 2

A party’s request for spousal support does not constitute a complete abrogation of the physician-patient privilege under R.C. 3217.02(B) [sic.] (Belinda appears to be referring to R.C. 2317.02(B)).

*In her merit brief, Belinda listed six propositions of law, but the Court only accepted these two.

Key Precedent

R.C. 2317.02(B)(1) (Privileged Communications)(A physician is permitted to testify against a patient and/or provide medical records under certain exceptions. The exception at issue here, in 2317.02(B)(3)(a), states that a physician may testify in a civil action about a communication that relates “causally or historically” to the physical or mental injuries involved.)

R.C. 3105.18(C)(1)(c) (A court shall consider the ages and the physical, mental, and emotional conditions of the parties in determining whether spousal support is appropriate and reasonable.)

R.C. 3109.04(C) (Prior to a trial regarding the allocation of parental rights and responsibilities in a child custody dispute, a court may cause an investigation to be made as to the character, family relations, past conduct, earning ability, and financial worth of each parent and may order the parents and their minor children to submit to medical, psychological, and psychiatric examinations.)

R.C. 3109.04(F)(1)(e) (A court shall consider the mental and physical health of all persons involved in the situation when determining the best interest of the child for the purposes of allocating parental rights and responsibilities in a child custody dispute.)

R.C. 4732.19 (The confidential relations and communications between a licensed psychologist and client are placed upon the same basis as those between physician and patient under R.C. 2317.02 (B).)

Gill v. Gill, 2003-Ohio-180 (8th Dist.) (Under R.C. 2317.02, the filing of any civil action by a patient waives the physician-patient privilege as to any communication that relates causally or historically to the physical or mental conditions put at issue by such civil action.)

Schill v. Schill, 2004-Ohio-5114 (11th Dist.) (A party seeking child custody agrees to submit to an investigation of all relevant factors, including mental health.)

Sweet v. Sweet, 2005-Ohio-7060 (11th Dist.) (In general, a person’s medical records are privileged and, thus, undiscoverable.)

Hageman v. Southwest General Health Center, 2008-Ohio-3343 (A parent puts his health at issue in a divorce action by seeking custody of his minor children and, thereby, waives his physician-patient privilege for the purposes of that case; also holding that an attorney may be liable to an opposing party for the unauthorized disclosure of that party’s medical information that was obtained through litigation.)

In re Kelleher, 2009-Ohio-2960 (7th Dist.) (When a parent files an action seeking child custody, she places her mental and physical condition at issue for the trial court to consider.)

Cireddu v. Clough, 2014-Ohio-2454 (11th Dist.) (A trial court has broad discretion in regulating the discovery process and, thus, a trial court’s decision on discovery matters will only be reversed for an abuse of discretion.)

Higbee v. Higbee, 2014-Ohio-954 (2nd Dist.) (When a party moves for spousal support, a trial court does not abuse its discretion by finding that health information is relevant to spousal-support issues and that the information is not protected by the physician-patient privilege.)

At Oral Argument

Arguing Counsel

Joseph G. Stafford, Stafford Law Co., L.P.A., Cleveland, for Appellant Belinda J. Torres Friedenberg

Gary S. Okin, Dworken & Bernstein Co, L.P.A., Painesville, for Appellee Keith Friedenberg

Belinda’s Argument

Belinda is a psychologist with advanced training in the field of psychoanalysis. In order to become an analyst, she underwent psychoanalysis in her training. It is those training records, which became her treatment records, that are at issue in this case. The trial judge determined that because Belinda filed a complaint for divorce and requested the allocation of parental rights and responsibilities and spousal support, the privilege of those medical records was waived merely by filing a complaint for divorce.

In order to weaponize these proceedings, Keith Friedenberg requested the release of the records in this case. There was never a claim in the trial court that Belinda had any mental health issues that affected her ability to parent the children or affected her ability to be gainfully employed.

The medical privilege should be upheld over the best-interest-of-the-child analysis. The best-interest analysis fails on many fronts because it goes on a case-by-case basis and subjects a litigant to the luck of the draw with the judge and opposing counsel.

This court should adopt one simple rule. Before the medical privilege is set aside, there must be an independent medical exam conducted to see if the mental health of a party is actually in play. An automatic release of these records would discourage a person from seeking treatment, which would not be in the best interest of the children. The various orders about the medical records in this case were all over the place until the trial judge simply ordered all of them released. The court’s rationale was once a party asks for the allocation of parental rights or spousal support the records are automatically released. Under the trial court’s ruling, there is not even in-camera inspection of the records.

The trial court has the power to order a psychological evaluation at any time in the allocation of parental rights and responsibilities. The court has the jurisdiction to order a psychological evaluation before privilege is released. Much is involved in these psychological evaluations. The independent forensic psychologist is appointed, there are meetings, there are clinical interviews and psychological testing. If the medical examination is inadequate, and there is independent proof of potential harm to a child, then the records could be looked at. In this particular case the court jumped to the release of records before there was any issue even raised concerning a parent’s mental health.

The danger here is no matter what is done in this case, the lower courts have determined that if a party asks for the allocation of parental rights and responsibilities or spousal support, there is a release of the medical privilege. The statute says that the medical records must be related causally or historically to physical or mental injuries, and yet the trial court never made that finding.

While this court did not accept Belinda’s Fourth proposition of law, it is the proper remedy sought in this matter:

In proceedings concerning the allocation of parental rights and responsibilities, a trial court should appoint an independent examiner under the Rules of Civil Procedure and/or Ohio Revised Code Section 3109.04(C) to determine the impact of a party’s mental health on the best interest of the child, and compelled disclosure of privileged mental health records should be utilized only when information from the independent examiner is inadequate and there is independent evidence of potential for harm to the child.

Keith’s Argument

By the presumption of regularity, all the records released by the trial court were historically relevant to this case, and the judge so found. Only relevant records came in. Keith did not want to spread on the record what he believed at the time. That is what in-camera inspections are for. Belinda was in constant therapy for ten years. One of the children was not living with her at all at the time, and the other was presumably living with her half the time. There was a legitimate concern at the trial stage that there was now a mental health problem here.

The statute requires that the trial court consider mental health issues, both in allocation of parental rights and for spousal support. Once a subpoena for the records is issued, the court can’t let those records go to just anybody. They must go to the court, and there must be a determination of relevance both historically and factually. After a determination of relevance, there was never an objection by Belinda to any one of those documents. She never came into court and said we’ve got these records, and these aren’t relevant. It was her burden to do so.

In order to protect the person whose records were being sought, the 11^th district approved a protective order which addressed the concern that those records would be made public. The standards established by the trial court and the appeals court both met the requirement of the statutes and additionally were protective in nature. Even if there is an independent medical exam, the examiner needs those records.

This court has already addressed this issue with Superintendence Rule 48 which allows guardians ad litem to get all of these records upon request. They are relevant, they are protected, and there are confidentiality provisions, just as there should be in this situation. The protective order should make all this confidential because it is confidential, and it is sensitive. But it is also a statutory requirement and necessary for the best interest of the child.

What Was On Their Minds

Privilege Statute

Justice DeWine commented he was having a hard time with Wife’s argument because it didn’t seem tethered to the privilege statute. Why isn’t Wife just arguing the statutory requirements for waiver of the privilege weren’t met? The statute says it has to be related historically or causally to physical or mental injuries. Why does the Court need to re-write this statute?

Allocation of Parental Rights and Responsibilities Statute

Doesn’t the statutory language put a parent’s mental and physical health at issue, asked Justice French? Just by statute, isn’t the court required to look at mental health records?

In light of the statute, which requires the court to consider mental health when child custody is at issue, how would the court incorporate wife’s proposal into something that could benefit all of the domestic clients in this state, asked Chief Justice O’Connor? Isn’t this something the legislature would have to consider, not the court?

Medical Records in this Case

Were Wife’s therapy records not for treatment but for certification in her profession, asked Chief Justice O’Connor? How old were the records? Were there also current treatment records? What happened to those?

Did the wife in the case also request the husband’s records, asked Justice French?

Did the trial court ever find that all these records related “causally or historically to physical or mental injuries,” asked Justice DeWine? What standard did the judge apply? Just that this is a divorce proceeding so the records come in?

Didn’t the 11th district determine these records were relevant to determine spousal support, asked Justice Donnelly? How could these records be relevant in that regard?

Relevancy Determination

Which records here did the magistrate actually find relevant, asked Justice Fischer? Certain ones?

Why did Husband’s counsel believe the records would be relevant when they were initially requested, asked Justice Donnelly, adding that discovery is not supposed to be a fishing expedition. If there had been some good faith belief that there would be a record where Wife had frequent thoughts of harming the children, I could see where that would be relevant, but was there anything like that here? After that in-camera inspection took place, did the magistrate articulate that the she was going to allow the parties to see these records, and why they were relevant?

Protection of Records

How is Wife’s suggestion protective if there is an independent examination, asked Justice Stewart? Why isn’t an in-camera inspection enough of a safeguard?

Independent Medical Exam

Isn’t that a one-time look, asked Justice Stewart? What if a parent-not the facts of this case-had delusions about harming his or her children? How could that be investigated?

Under this scenario, would that independent medical examiner be privy to the medical records, asked Chief Justice O’Connor, adding that if not, she didn’t know how any professional would be willing to do that. Wouldn’t a psychological need the big picture? They can’t just do a slice out of a day, she added.

Issues in this Appeal

Did the court accept Wife’s proposition 4 when it accepted jurisdiction, asked Justice French? (Counsel admitted it had not) Why should we rule on it? Was it raised below?

How it Looks From the Bleachers

To Professor Emerita Marianna Bettman

The court is clearly not going to adopt Belinda’s proposition that no records will be released until an independent medical examiner determines that there really are mental health issues that have a bearing on the allocation of parental rights at issue in the case. As for the two propositions that were accepted in the case, both state truisms, but aren’t especially helpful here.

The statutes regarding allocation of parental rights and responsibilities and spousal support both require the court to consider mental health issues. It was impossible to tell from the argument exactly which records were ordered released in this case. Belinda’s lawyer made it sound like an indiscriminate records dump without enough oversight as to protection and relevance. Keith’s lawyer passionately insisted that wasn’t so. Justices DeWine and Donnelly seemed least persuaded by that insistence.

At the very least, I suspect the court is going to issue a reminder that these kinds of records are very sensitive, and release must, as Justice DeWine put it, be tethered to the waiver statute requirements. To this end, I went back and read the Court’s decision in Hageman, written by then-Chief Justice Tom Moyer, and recommend readers do so as well. In that case the Court refused to view the waiver of physician/patient privilege expansively, especially those involving treatment for psychological conditions. In fact, the wrongful release of confidential records is a tort in Ohio. Belinda’s lawyer might have done well to lean on that case more during his argument.

The case could very well get sent back for a more stringent look at the relevance of the records that were ordered released. Without knowing the particulars about what was ordered released, it’s hard to tell. But that still is the job of the trial court, not an independent medical examiner.

To Student Contributor Madeline Pinto

I think the Court will likely rule in Keith’s favor. Chief Justice O’Connor and Justices French and DeWine appeared concerned that Belinda’s arguments contradict the clear mandate of R.C. 3109.04(F)(1)(e). Chief Justice O’Connor stressed that the statute provides that the court shall consider mental evaluations when child custody is at issue. Justice DeWine clearly stated that he was “having a hard time with” Belinda’s argument because “it doesn’t seem to be very tethered to the statute.” Justice French’s questions suggested that she too believes the plain language of the statute requires the court to look at any available mental health records. The Justices also appeared critical of Belinda’s proposed rule that before a court sets aside privilege, it should order an independent medical examination to determine whether the mental health of the party is actually an issue. In particular, Chief Justice O’Connor expressed concern that the independent examiner would be unable to evaluate the big picture of the party’s mental health because, under Belinda’s proposed rule, the independent examiner would not be privy to the party’s medical records. Justice Stewart also seemed to doubt the effectiveness of a one-time mental health examination.

On the other hand, Justice Donnelly seemed dubious of Keith’s motivation in initially requesting Belinda’s medical records, suggesting that Keith’s counsel did not have the requisite good faith belief that Belinda’s medical records would be relevant when he initially made the request. Further, both Justice Donnelly and Justice DeWine questioned whether the trial court conducted the proper relevancy analysis when the court determined that Belinda’s medical records were relevant. Justice DeWine questioned whether the judge properly determined that all of Belinda’s medical records were causally or historically relevant to physical or mental injuries relevant to issues in the case as required by R.C. 2317.02 (3)(a). Justice DeWine suggested that, rather than complying with the requirements of R.C. 2317.02, the judge simply concluded that the medical records should come in because this was a divorce proceeding. Similarly, Justice Donnelly questioned how Belinda’s records were found to be relevant to the issue of spousal support and whether the judge ever articulated why Belinda’s medical records were relevant to that issue. However, despite these criticisms, I think the Court will most likely rule in Keith’s favor. Chief Justice O’Connor and Justices French, Stewart, and, to a slightly lesser degree, DeWine, appeared unconvinced by Belinda’s arguments.